Federalist No. 16

The Same Subject Continued:
The Insufficiency of the Present Confederation to Preserve the
Union
From the New York Packet.
Tuesday, December 4, 1787.

Author: Alexander Hamilton

To the People of the State of New York:

THE tendency of the principle of legislation for States, or
communities, in their political capacities, as it has been
exemplified by the experiment we have made of it, is equally
attested by the events which have befallen all other governments of
the confederate kind, of which we have any account, in exact
proportion to its prevalence in those systems. The confirmations of
this fact will be worthy of a distinct and particular examination.
I shall content myself with barely observing here, that of all the
confederacies of antiquity, which history has handed down to us,
the Lycian and Achaean leagues, as far as there remain vestiges of
them, appear to have been most free from the fetters of that
mistaken principle, and were accordingly those which have best
deserved, and have most liberally received, the applauding
suffrages of political writers.

This exceptionable principle may, as truly as emphatically, be
styled the parent of anarchy: It has been seen that delinquencies
in the members of the Union are its natural and necessary
offspring; and that whenever they happen, the only constitutional
remedy is force, and the immediate effect of the use of it, civil
war.

It remains to inquire how far so odious an engine of government,
in its application to us, would even be capable of answering its
end. If there should not be a large army constantly at the disposal
of the national government it would either not be able to employ
force at all, or, when this could be done, it would amount to a war
between parts of the Confederacy concerning the infractions of a
league, in which the strongest combination would be most likely to
prevail, whether it consisted of those who supported or of those
who resisted the general authority. It would rarely happen that the
delinquency to be redressed would be confined to a single member,
and if there were more than one who had neglected their duty,
similarity of situation would induce them to unite for common
defense. Independent of this motive of sympathy, if a large and
influential State should happen to be the aggressing member, it
would commonly have weight enough with its neighbors to win over
some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without
difficulty, be invented to alarm the apprehensions, inflame the
passions, and conciliate the good-will, even of those States which
were not chargeable with any violation or omission of duty. This
would be the more likely to take place, as the delinquencies of the
larger members might be expected sometimes to proceed from an
ambitious premeditation in their rulers, with a view to getting rid
of all external control upon their designs of personal
aggrandizement; the better to effect which it is presumable they
would tamper beforehand with leading individuals in the adjacent
States. If associates could not be found at home, recourse would be
had to the aid of foreign powers, who would seldom be disinclined
to encouraging the dissensions of a Confederacy, from the firm
union of which they had so much to fear. When the sword is once
drawn, the passions of men observe no bounds of moderation. The
suggestions of wounded pride, the instigations of irritated
resentment, would be apt to carry the States against which the arms
of the Union were exerted, to any extremes necessary to avenge the
affront or to avoid the disgrace of submission. The first war of
this kind would probably terminate in a dissolution of the
Union.

This may be considered as the violent death of the Confederacy.
Its more natural death is what we now seem to be on the point of
experiencing, if the federal system be not speedily renovated in a
more substantial form. It is not probable, considering the genius
of this country, that the complying States would often be inclined
to support the authority of the Union by engaging in a war against
the non-complying States. They would always be more ready to pursue
the milder course of putting themselves upon an equal footing with
the delinquent members by an imitation of their example. And the
guilt of all would thus become the security of all. Our past
experience has exhibited the operation of this spirit in its full
light. There would, in fact, be an insuperable difficulty in
ascertaining when force could with propriety be employed. In the
article of pecuniary contribution, which would be the most usual
source of delinquency, it would often be impossible to decide
whether it had proceeded from disinclination or inability. The
pretense of the latter would always be at hand. And the case must
be very flagrant in which its fallacy could be detected with
sufficient certainty to justify the harsh expedient of compulsion.
It is easy to see that this problem alone, as often as it should
occur, would open a wide field for the exercise of factious views,
of partiality, and of oppression, in the majority that happened to
prevail in the national council.

It seems to require no pains to prove that the States ought not
to prefer a national Constitution which could only be kept in
motion by the instrumentality of a large army continually on foot
to execute the ordinary requisitions or decrees of the government.
And yet this is the plain alternative involved by those who wish to
deny it the power of extending its operations to individuals. Such
a scheme, if practicable at all, would instantly degenerate into a
military despotism; but it will be found in every light
impracticable. The resources of the Union would not be equal to the
maintenance of an army considerable enough to confine the larger
States within the limits of their duty; nor would the means ever be
furnished of forming such an army in the first instance. Whoever
considers the populousness and strength of several of these States
singly at the present juncture, and looks forward to what they will
become, even at the distance of half a century, will at once
dismiss as idle and visionary any scheme which aims at regulating
their movements by laws to operate upon them in their collective
capacities, and to be executed by a coercion applicable to them in
the same capacities. A project of this kind is little less romantic
than the monster-taming spirit which is attributed to the fabulous
heroes and demi-gods of antiquity.

Even in those confederacies which have been composed of members
smaller than many of our counties, the principle of legislation for
sovereign States, supported by military coercion, has never been
found effectual. It has rarely been attempted to be employed, but
against the weaker members; and in most instances attempts to
coerce the refractory and disobedient have been the signals of
bloody wars, in which one half of the confederacy has displayed its
banners against the other half.

The result of these observations to an intelligent mind must be
clearly this, that if it be possible at any rate to construct a
federal government capable of regulating the common concerns and
preserving the general tranquillity, it must be founded, as to the
objects committed to its care, upon the reverse of the principle
contended for by the opponents of the proposed Constitution. It
must carry its agency to the persons of the citizens. It must stand
in need of no intermediate legislations; but must itself be
empowered to employ the arm of the ordinary magistrate to execute
its own resolutions. The majesty of the national authority must be
manifested through the medium of the courts of justice. The
government of the Union, like that of each State, must be able to
address itself immediately to the hopes and fears of individuals;
and to attract to its support those passions which have the
strongest influence upon the human heart. It must, in short,
possess all the means, and have aright to resort to all the
methods, of executing the powers with which it is intrusted, that
are possessed and exercised by the government of the particular
States.

To this reasoning it may perhaps be objected, that if any State
should be disaffected to the authority of the Union, it could at
any time obstruct the execution of its laws, and bring the matter
to the same issue of force, with the necessity of which the
opposite scheme is reproached.

The pausibility of this objection will vanish the moment we
advert to the essential difference between a mere NON-COMPLIANCE
and a DIRECT and ACTIVE RESISTANCE. If the interposition of the
State legislatures be necessary to give effect to a measure of the
Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the
measure is defeated. This neglect of duty may be disguised under
affected but unsubstantial provisions, so as not to appear, and of
course not to excite any alarm in the people for the safety of the
Constitution. The State leaders may even make a merit of their
surreptitious invasions of it on the ground of some temporary
convenience, exemption, or advantage.

But if the execution of the laws of the national government
should not require the intervention of the State legislatures, if
they were to pass into immediate operation upon the citizens
themselves, the particular governments could not interrupt their
progress without an open and violent exertion of an
unconstitutional power. No omissions nor evasions would answer the
end. They would be obliged to act, and in such a manner as would
leave no doubt that they had encroached on the national rights. An
experiment of this nature would always be hazardous in the face of
a constitution in any degree competent to its own defense, and of a
people enlightened enough to distinguish between a legal exercise
and an illegal usurpation of authority. The success of it would
require not merely a factious majority in the legislature, but the
concurrence of the courts of justice and of the body of the people.
If the judges were not embarked in a conspiracy with the
legislature, they would pronounce the resolutions of such a
majority to be contrary to the supreme law of the land,
unconstitutional, and void. If the people were not tainted with the
spirit of their State representatives, they, as the natural
guardians of the Constitution, would throw their weight into the
national scale and give it a decided preponderancy in the contest.
Attempts of this kind would not often be made with levity or
rashness, because they could seldom be made without danger to the
authors, unless in cases of a tyrannical exercise of the federal
authority.

If opposition to the national government should arise from the
disorderly conduct of refractory or seditious individuals, it could
be overcome by the same means which are daily employed against the
same evil under the State governments. The magistracy, being
equally the ministers of the law of the land, from whatever source
it might emanate, would doubtless be as ready to guard the national
as the local regulations from the inroads of private
licentiousness. As to those partial commotions and insurrections,
which sometimes disquiet society, from the intrigues of an
inconsiderable faction, or from sudden or occasional illhumors that
do not infect the great body of the community the general
government could command more extensive resources for the
suppression of disturbances of that kind than would be in the power
of any single member. And as to those mortal feuds which, in
certain conjunctures, spread a conflagration through a whole
nation, or through a very large proportion of it, proceeding either
from weighty causes of discontent given by the government or from
the contagion of some violent popular paroxysm, they do not fall
within any ordinary rules of calculation. When they happen, they
commonly amount to revolutions and dismemberments of empire. No
form of government can always either avoid or control them. It is
in vain to hope to guard against events too mighty for human
foresight or precaution, and it would be idle to object to a
government because it could not perform impossibilities.